Le blog de Polyscopique

1. The shift in emphasis from negative rights (freedom of speech, freedom of religion, freedom to contract, etc. boiling down to the right to be left alone, to be free from government interference) to positive rights (right to welfare, right to affordable housing, right to free health care, etc. boiling down to the right to other people's money) In short, the new liberalism argues that a person is not really free if he is poor, ill or ignorant and that the State must guarantee him a minimum income, free health care and education and a myriad of other social programs for him to enjoy real freedom. (And the first thing you know is that half your paycheck goes to the taxman. Now that's real freedom.)

2. The shift from equality under law and equality of opportunity to equality of result. Whereas classical liberalism would strive to eliminate aristocratic and class-based privileges and to abolish discriminatory legislation, the new liberalism strives to equalize the distribution of income and to ensure that historically disadvantaged minorities are properly represented in the high rungs of society.

3. The shift from rights to be exercised against the government to rights to be exercised against private parties. Whereas a classical liberal would emphasize rights as something that limits the powers of government, the new liberal would point to relationships between private parties (e.g. employee-employer or tenant-landlord) that seem imbalanced and would demand that the lesser party be allowed to exercise rights against the other party. For example, if an employer chooses to hire only persons of a given sex, race, creed, sexual orientation or marital status, the new liberal would argue that the human rights of the rejected applicants were violated while the classical liberal would say that the employer has the right to choose who will be on his payroll.

In Canada, Pierre Trudeau is often associated with the switch from classical to left-liberalism, but it is interesting to notice that his main legacy, the Charter of Rights and Freedoms, is a mostly classical liberal document. The rights and freedoms the Charter deals with are negative rights like freedom of speech, freedom of religion or protection against cruel punishment. With the exception of publicly funded minority-language education, there are none of the positive rights so often cherished by the Trudeau Liberals. The Charter guarantees equality under law, not equality of result, even though there is a clause allowing, but not requiring, the government to instate 'affirmative action' programs for disadvantaged groups. Charter rights limit the powers of both federal and provincial governments, but they cannot be exercised against employers, landlords or any other private party.

However, it should be emphasized that though the Charter does not require a welfare and regulatory state, it also does nothing to stop one. Indeed, in the long run, even a thoroughly classical liberal document like the U.S. Constitution could not prevent the erection of a welfare and regulatory state in Washington. Worse, some judges, activists and special interests do think that the Charter should be interpreted as guaranteeing a smorgasbord of "social and economic rights". For example, in the 2002 Gosselin case, two Supreme Court Justices thought that the Charter protection of "life, liberty and security of the person" imposed on the State a positive obligation to provide welfare. In the Auton case, the Supreme Court has recently ruled against parents who demanded that British Columbia's provincial government fund a controversial therapy for their children. Every lower court had ruled in the parents' favor. Even though the rejection of positive rights by the Supreme Court in these two cases might seem encouraging, it must be remembered that the Canadian constitution is considered a 'living tree' whose meaning may change over time. Moreover, the framers of the Charter did intend the Charter to be such a living tree. The Supreme Court could thus revisit its earlier decisions and rule that a more 'progressive' interpretation of the Charter implies guaranteed positive rights. In fact, 8 of 9 Justices in the Gosselin case raised such a possibility. The Court had already walked down this path with its 1997 ruling in the Eldridge case where, as a practical matter, it seized the public purse and ruled that the provincial government of British Columbia had to supply deaf persons with sign languages interpreters in its health care system.

Libertarians and classical liberals often assume that if only we could adhere to the letter of the constitution, if only we could keep a correct conception of liberty, equality and rights, then such things would not happen and we could live under a limited government. Much effort thus goes into things like trying to teach people the difference between freedom and power. However, given the inability of classical liberal constitutions to stem the growth of the welfare state and the ease with which liberal concepts like 'liberty', 'equality' and 'rights' have been turned on their head, it may be time to wonder if there could be a flaw with classical liberalism itself. I think I may have stumbled on such a flaw while reading this piece by Thomas E. Woods Jr.:

Thomas Hobbes [...] set out parameters for the modern state in Leviathan (1651) that developed into unexamined premises that later thinkers (even putative opponents like John Locke) all but took for granted. The modern state about which Hobbes theorized is one in which the central government is absolutely supreme, and in which society is thought of as being composed not of independent social authorities, as in a federative polity, but of a simple aggregate of individuals. There are no truly independent social authorities in the modern state because nothing is thought to be independent of or prior to the central government. All potential for corporate resistance is gone; mere individuals, by contrast, are typically helpless against a strong central government.

Because classical liberalism held that every individual should be equal for all political purposes and should be equal under law, it viewed the varying historic privileges, rights and powers held by the landed aristocracy, the Church, cities, etc. as something retrograde. Therefore it freed peasants from feudal tenure and made them freeholders, attacked the temporal power of the Church and enacted a uniform set of national laws. However, in so doing classical liberalism ended up being a victim of the Law of unintended consequences. By freeing individuals from the powers of the landed aristocracy, of the Church and of other such institutions, it ended up politically destroying any institution with the power to effectively resist the central government. This was not a problem as long as this central government was guided by classical liberal principles, but then... why I guess you know the rest of the story. It had cleared the way for the welfare and regulatory state, if not worse.

I'm not going to argue that things were better when we had a landed aristocracy nor do I know exactly how this problem can be solved (which is why this post is titled 'The problem with liberalism' and not 'Problems of the world solved') However, I think this means classical liberals should be skeptical of those who argue for centralization in the name of liberty or free markets, which Gene Healy has called libertarian centralism.

For example, there is often much hue and cry among Canadian fiscal consevatives about provincial barriers to trade such as Québec's silly regulations against margarine. These margarine regulations might not seem to be a trade barrier at first glance (margarine products are treated the same way whether they were produced in Québec or not) until you realize that Québec produces little margarine and much butter. These margarine regulations are a particularly flagrant example of a trade-barrier-masquerading-as-a-regulation, but it isn't hard to imagine more subtle cases where it would be almost impossible to distinguish a more legitimate regulation from a trade barrier in disguise. In fact, the mere fact that ten provincial legislatures each issue a distinct set of regulations probably causes a myriad of small deviations from what a 'true' or ideal Canadian free trade would look like. That's why, past a certain degree of free trade, any move towards freer trade involves a uniformization of regulations ("colored margarine to be banned from coast to coast.") Thus it is no surprise that as the European Union has moved towards ever closer union it has sprouted a massive 'acquis communautaire' of 80,000 pages of regulations, or that the Commerce Clause has proved to be a massive source of power for the American federal government.

In a 1991 article, Andrew Coyne argued that the Canadian federal government could divest itself of some of its exclusive jurisdictions without problem as long as it gained a muscular power to regulate trade. This power, Coyne argued gleefully, would 'emasculate' the provinces and prove to be the 'federalist Trojan horse.' Coyne doesn't know the half of it; this would prove to be the socialist Trojan horse.